Are Judicial Opinions Ethical?

“Nothing is more conducive to peace of mind than not having any opinion at all.”

G.C. Lichtenberg

Judicial opinions announce and explain the results of trials and appeals. Trial court opinions are written by a single judge. Appellate court opinions are also written by a single judge, but deliver the opinion of a majority of the appellate panel. Importantly, judicial opinions are written by a cloistered branch of government. They communicate only by written opinions. A judicial opinion is a public record. “When an opinion explaining the court’s decision makes sense to the public, then all is well. When the public is confused by the opinion, or feels false, or unfair, or unjust, then our sense of the fairness of our society is weakened. Consequently, courts choose their words carefully, use appropriate language, and make every attempt to announce the result clearly. To preserve our faith in justice, the court must write well.”[1]

“The judiciary’s power comes from its words alone—judges command no army and control no purse. In a democracy, judges have legitimacy only when their words deserve respect, and their words deserve respect only when those who utter them are ethical. Opinion writing is public writing of the highest order; people are affected not only by judicial opinions but also by how they are written. Therefore, judges and the opinions they write—opinions scrutinized by litigants, attorneys, other judges, and the public—are held, and must be held, to high ethical standards. Ethics must constrain every aspect of the judicial opinion.”[2]

Before engaging in a meaningful discussion of what an ethical opinion is, it is necessary to deﬁne the term “ethical.” The dictionary deﬁnes “ethical” as “of or pertaining to morality or the science of ethics” and “pertaining to morals.” From the dictionary deﬁnition of “ethical,” it is clear that judges should be of good character: virtuous, righteous, and responsible.[3]

Fact is, there are no hard-and-fast rules of what constitutes ethical judicial writing. But that doesn’t matter. Judges are subject to rigid ethical codes. Federal judges have a code of ethics.[4] All state court judges follow a code of ethics using the Model Code, originally written by the American Bar Association.[5] The preamble to state court ethical codes for judges requires, “[1] An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system. [2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.”

Neither the federal judiciary, or any state judiciary explicitly require “ethically written opinions.” I’ve read thousands of judicial opinions. I wrote two appellate opinions myself. Many were about trials, or appeals in which I was one of the lawyers.

I can ethically say I never read an opinion I thought was unethical, although Plessy was, and is, a blight on judicial ethics.

[1] “The Oxford Companion to the Supreme Court of the United States.” Oxford University Press. Oxford, NY 2005, page 707.